Conviction and sentence of 12 years suspended; Court finds no prima facie evidence of attempted rape
In a significant ruling, the Calcutta High Court has held that an attempt to grope a minor girl’s breasts amounts to aggravated sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, and not an attempt to rape. This observation was made while suspending the conviction and 12-year sentence of a man found guilty by a trial court in Kurseong.
The Bench comprising Justices Arijit Banerjee and Biswaroop Chowdhury observed:
“The evidence of the victim girl and the medical examination report prima facie do not indicate that there was any penetration or rape committed by the petitioner on the victim girl nor that he attempted to penetrate.”
The Court further clarified:
“Such evidence may support a charge of aggravated sexual assault under Section 10 of the POCSO Act, 2012, but prima facie does not indicate commission of the offence of attempted rape.”
The convict, Zomangaih @ Zohmangaiha, had been sentenced by the Additional District and Sessions Judge, Kurseong in November 2024. He moved the High Court seeking suspension of the sentence pending appeal. Represented by Advocate Ashima Mandla, it was argued that the prosecution’s evidence did not support a charge of attempted rape.
It was pointed out that while the victim initially mentioned an attempt to kiss her, the allegation of breast grabbing appeared only later during her court testimony. Mandla further argued that even this allegation appeared to be in the context of the petitioner restraining the girl from leaving, and not necessarily with clear sexual intent.
After examining the trial court records, the High Court noted that even if the charge is ultimately scaled down to aggravated sexual assault, the maximum punishment is seven years, and the petitioner had already spent over two years and four months in custody.
The Court also acknowledged delays in appeal hearings, stating:
“The appeal is of 2024 and a huge number of much older criminal appeals are pending. It is highly unlikely that the present appeal will be heard on an early date.”
Given these factors, the Court concluded:
“It cannot be said that the appeal is completely devoid of merits… We are inclined to suspend the sentence of the petitioner and grant him bail.”
Additionally, the Court ordered:
“The operation of the order of conviction and sentence shall remain suspended till disposal of the appeal or until further orders, whichever is earlier. We also stay the operation of payment of fine till disposal of the appeal.”
However, the Bench made it clear that its findings were only for the purpose of deciding the present application and would not affect the final hearing of the appeal.
Case: Zomangaih @ Zohmangaiha vs State of West Bengal – Available on LAWFYI.IO
